Agenda - Planning Commission - 03/02/1999

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Z.B. January 25, 1999 -- Page 7 Setback Requirement m Developer builds without permit, then seeks setback variance Citation: D & D I~vestment Inc. v. Franklin C~unty Board of Zo~zing Appeals, Court of Appeals of Ohio, loth Appellate D, is.t., Franklin Cou~ty, No. 97APDll-1479 (1998) D & D Investment Inc. (developer) wanted to build a 181,000-square-foot warehouse in Franklin County, Ohio. The property was zoned heavy manufac- turing, and the developer's site plan application proposed a 120-foot setback. A neighbor later complained the developer was building its warehouse too close to the road. The zoning board investigated because it had never issued a permit for the warehouse. The inspector found the developer had built a foun- dation with a 90-foot setback. The board ordered the developer to cease con- struction until it got a zoning permit. The zoning district's setback was "the average setback observed by the general commercial or maniafacturing buildings on the same side of the street or streets within the same block." The zoning ordinance stated that if there were no buildings on either side:of the street within a block when the ordinance was passed, the setback line "shall not be less than" 80 feet. The developer applied for a variance allowing a 90-foot setback. To deter- mine if the developer suffered the necessary "practical difficulties," the board ,had to consider whether the property could be used without a variance, whether the variance was substantial or would adversely impact government services, whether neighbors would be harmed, whether the developer knew about the zoning restrictions when it bought the property, and whether the developer's problem could be solved without a variance. The board denied the variance. It found the zoning ordinance required a minimum setback of 150 feet based on other buildings in the area. The developer appealed to court, arguing it would suffer substantial losses by losing 15,000 square feet of storage space and moving or demolishing part of the foundation to comply with the 150-foot setback. The court affirmed the board's decision. An appeals court later returned the matter to the board, find- ing the board should have applied the "not less than" 80-foot setback. The board held another hearing and again determined the 150-foot setback was appropriate. According to the board, a 90-foot setback would prevent road traffic from seeing neighboring businesses' signs and display windows and would prevent southbound traffic from seeing another retail business. The board also found a 90-foot setback would adversely effect storm water drainage. The developer appealed to court again, arguing it didn't need a setback variance because the zoning ordinance created a minimum setback of only 80 feet. The developer also claimed the board stressed compatibility with the es- tablished 150-foot setback instead of applying the appropriate factors. The board responded that the ordinance set a minimum 80-foot setback that it could increase at its discretion, not a mandatory 80-foot setback. The board